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Thursday, March 13, 2008

Should the feds attack state & local corruption?

Yes, probably -- but only with the tightest constraints.

I ask the question because Paul Killebrew states the following, with which I disagree:

"The point is that rather than be alarmed by the use of federal law
enforcement against state political figures, we might instead be
relieved, and for familiar reasons -- federal authorities are at some
remove from state and local passions and less responsive to state and
local politic(ian)s."

I have written up my disagreement with this view of the benefits of federal prosecution of local corruption elsewhere. (For those who are interested, here's the link). But here, in brief, are my reservations about federal prosecution of non-federal corruption.

First, federal prosecution often does little to promote local accountability. Yes, federal prosecutors are less vulnerable to state and local politics -- and more vulnerable to federal politics. Thus, when (for instance) federal prosecutors wiretap Mayor Street's offices immediately before the Philadelphia mayoral election, there was widespread anger among Philadelphia Democrats that the feds were trying to tilt the election (as suggested in the New York Times). If the point of federal prosecutions is to promote a sense of legitimacy in the non-federal jurisdiction, having the feds pursue members of the opposite party in a hamhanded way is unlikely to accomplish the goal. This is especially true because the exercise of prosecutorial discretion is not transparent: One can never tell whether the feds are going after members of their own political party with equal alacrity. If one doubts that Governor Spitzer is the only state politician who has moved money between accounts in suspicious ways, then one will inevitably have questions about why he alone was the target of a federal investigation. Ken Starr was undoubtedly free from any political influence from the Clinton Administration, but, contrary to the implications of Paul Killebrew's statement, this freedom did not mean that he was perceived as being devoid of any political passions. The result was an investigation that was, in the eyes of many, tainted with the stain of a ideological crusade against Clinton.

Second, federal prosecutors ought not to resolve disputed and difficult questions of political structure. This means that they ought not to define what constitutes "corruption" but instead should stick to enforcing well-defined state and federal law, which often forbids quid pro quo bribes but permits gratuities. When feds attack, for instance, the exchange of political favors for campaign contributions or nepotism or general conflicts of interest, they tread on legislative ground. The degree to which non-federal politics should be free from conflicts of interest is actually a difficult empirical and normative question. Eliminating conflicts of interest can disqualify most of the qualified volunteers for what are often unpaid jobs. Eliminating favors exchanged for campaign contributions can destroy the patronage necessary to sustain state political parties. The benefits of absolute integrity might be worth the price -- but such a decision is a policy matter best left to the state or federal legislature, not to some U.S. Attorney with an axe to grind or a career to burnish with anti-corruption prosecutions.

With these observations in mind, I believe that a reasonable person might be a trifle disquieted by an investigation in which (1) the feds use the broad sweep of the federal money laundering laws to investigate a governor's movement of funds between bank accounts, (2) uncover evidence of a sexual offense having nothing whatsoever to do with the sort of public corruption that initially interested them in the movement of funds and that has little to do with the sort of public dishonesty that the feds ought to investigate, and (3) allow this evidence to trigger inquiries from the press that eventually lead to the resignation of the Republican party's most feared rival in the State of New York.

But whether one approves or disapproves of the federal investigation of Spitzer is a transient question in which I am only marginally interested. The important point is to avoid a celebratory tone with discussing federal investigation of allegations of non-federal corruption.

Posted by Rick Hills on March 13, 2008 at 04:40 PM | Permalink


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Prof. Hills, as an NYU Law alum, I'm especially gratified that you took the time to respond to my comment with such force. NYU is lucky to have you. The case of Mississippi Supreme Court Justice Oliver Diaz, covered at http://www.harpers.org/archive/2007/10/hbc-90001321, certainly illustrates your points about the mismatch of federal anticorruption prosecutions to local political realities and ax-wielding, politically ambitious federal prosecutors. As a general matter, I think your points make tremendous sense.

On the smaller issue that admittedly isn't of as much interest to you, I don't know how much applicability your points have to the Spitzer case, at least at this point. Maybe I'm naive, but I just don't buy that there was political influence on North Fork Bank or HSBC in raising red flags to the Treasury Department on suspicious financial transactions, or even on the IRS office on Long Island that initially investigated Spitzer's suspicious cash movements (discussed at http://www.nytimes.com/2008/03/13/nyregion/13legal.html). It also doesn't seem like this is an instance in which federal corruption law mischaracterized benign local political realities; Spitzer didn't move cash around in some kind of quid-pro-quo arrangement, he transferred money to shell companies to pay for prostitutes.

I'll admit that there are separate considerations that will come into play when we start talking about whether and how Spitzer will be prosecuted, and at this point our federalizing-local-corruption dander should go up, and we should consider whether SDNY has a political ax to grind. We should also think about whether laws against "structuring" should apply to, well, transferring money to shell companies to pay for prostitutes. It is on these points that I think your argument wins.

But by that point we will have hopefully seen all of the political fallout we'll see from this, if in fact we haven't already seen the extent of the damage with Spitzer's resignation. This, to me, is the advantage of a federal prosecution in this case. Had all of this come to light through an investigation by state law enforcement, the idea that Joe Bruno or other state Republicans had something to do with it seems not only feasible, but probable, which would have dragged state government into a years-long quagmire.

Posted by: Paul Killebrew | Mar 14, 2008 3:35:46 PM

I'm not sure of the benefits of federal prosecutions as a policy matter, but here I argue that local corruption among police and judges is unconstitutional under the Equal Protection Clause because it unequally supplies the "protection of the laws."

Posted by: Chris | Mar 14, 2008 9:08:03 AM

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