Notes on the crisis, part 2

2. It's political

Prosecutors at all levels of government like to portray themselves as objective, neutral enforcers of the law, tackling all lawbreakers with equal zest. That, of course, is hogwash.

I write about this because I have detected a tone of such Pollyanna idealism in the writings of a number of bloggers over the past few days. They say things such as that the U.S. Attorney in New York had no choice but to pursue these allegations.

Well, that's just not true. He had extremely broad, nearly unlimited discretion.

Consider what has to go into each decision to pursue or not pursue a known or suspected violation of any criminal law. There are limited resources available (personnel, budget, court time, etc.), never anywhere near enough to take on every violation of every law, so choices have to be made. Every decision to doggedly pursue Case X means that a Case Y has to be allowed to slide by, or pleaded out to a lesser charge with minimal expenditure of money and staff time.

First there are the pragmatic considerations. Is there enough evidence to have a strong chance of a successful prosecution? How many man-hours will the case consume? Will it likely lead to other crimes/criminals that can be taken sequentially?

Then there are the social considerations. Which crimes are most important to society? Which violators and violations are the most egregious and/or the most deleterious to quality of life for everybody else? Obviously, e.g., the drunk driver on his 20th arrest is a more important target for the hardest possible push than the first-time offender.

But even after you take into account those factors, there is still a large element of prosecutorial discretion that can only be labeled as political. (I don't mean that pejoratively; it is neither intrinsically good or bad, it just is.) This includes considerations such as how widely known the alleged crime is, and, closely related to that, how much public clamor there is for action to be taken. For example, after the police officers who beat Rodney King were acquitted on state charges, there was enormous public pressure put on the federal Department of Justice to take a crack at them for civil rights violations. When you get a highly publicized crime like the murder of Yusef Hawkins in Bensonhurst, James Byrd dragged to death in Texas, or the Central Park Jogger case, you can be sure that the prosecution will be more aggressive than it would be for an otherwise equally appalling crime that didn't happen to catch media attention.

The identity and prominence of the suspect make a difference. Sometimes those factors cause the prosecutor to go easy. For example, local prosecutors tend to be extremely reluctant to put cops in jail, because they need the ongoing support of the police force, and bad blood between the police and the DA makes every case that much harder. Other times, being a high-profile defendant can work against you, as a prosecutor will be more aggressive either to make an example of you or to make a deliberate show of not being soft on the rich and famous.

Another political factor is how much money can be recovered from the case.

Personal politics and preferences play a role. Just as some judges give, e.g., drunk drivers a mere slap on the wrist while others let them rot in prison for as long as the statutes allow, so some prosecutors have a bee in their bonnet for certain categories of crime, while their counterparts in other jurisdictions expend relatively less energy on the same things.

Similarly, entire departments and divisions have institutional priorities. Within the past week, for instance, we have seen the Department of Justice close up its "Obscenity Prosecution Task Force, a special Justice Department unit set up during the Bush administration under pressure from conservatives upset about the proliferation of obscene material on the Internet." Over the loud objections of a bunch of senators, Eric Holder has simply decided that he has other more important priorities for his department. Similarly, in 2009 the DOJ announced that it would not be pursuing marijuana cases that were in compliance with state medical marijuana laws. (However, like most of what is announced by the Obama administration, this turned out to be pretty much a lie.)

Perhaps the most insidious way in which politics affects prosecutorial discretion is personal ambition. Prosecuting attorneys, like most everybody else, want to move up in the world. If you don't think that Rudolph Giuliani and Eliot Spitzer had their eyes on the governor's mansion when they were picking and choosing what cases to take on as prosecutors, your naivete is too profound for me to cure with a single blog post. Many U.S. Attorneys likely picture themselves as the future Attorney General or White House Counsel or head of the FBI--or going to the other side of the street where the big money is, taking on the richest criminal defendants. For all such future career moves, keeping their names in the public eye with high-profile cases is an extremely important consideration. For example, about the time I was moving from Minnesota to Nevada, there was the case of a hunter from St. Paul, Chai Vang, who killed six people and injured two others in the Wisconsin woods, claiming self-defense. The Attorney General of Wisconsin, Peg Lautenschlager, was facing a tough reelection bid due to her drunk driving charge two years earlier, and she took time out of her campaign to personally conduct the prosecution, an extremely unusual move for a state AG, nakedly calculated for her own political benefit.

When you consider the Manhattan U.S. Attorney tackling the poker sites, you have to wonder why him, rather than any of the other 93 U.S. Attorneys in the country? Why now? Why these sites, and not the myriad sites offering other casino games? Why online gaming at all as a subject of prosecution rather than other crimes that they could choose to be focusing their resources on? Many other commentators have already expressed outrage that the poker site owners are having the book thrown at them while those in the financial industry who were most responsible for the current economic crisis seem to have gotten off scot-free. (As just one example, see here.) Were there really no federal laws broken by anybody anywhere in that mess?

I am not suggesting that political considerations explain everything about why these cases are brought at all, or where they were brought, or when they were brought. But you'd have to be wearing glasses more rose-colored than Greg Raymer's to think that the personal agendas, motivations, preferences, and ambitions of those most highly placed in that particular U.S. Attorney's office played no part in it. Naturally they would deny it vehemently, and naturally I can't provide even a shred of actual evidence for this assertion. Nevertheless, I am absolutely certain that it is true. That is just the nature of how these things are. Chief prosecutors at any level of government are, almost without exception, personally aggressive, ambitious people, or they would not be where they are. They are skilled at looking after their own best interests. That includes doing so by their decisions on who, what, when, and how aggressively to prosecute.

A high-profile, international, precedent-setting case with potentially billions of dollars of assets subject to forfeiture is a ripe, attractive target for an ambitious prosecutor aiming to increase his name recognition and advance his own career prospects. I don't know how anybody could either deny that obvious fact or wave it off as if it's irrelevant to the recent developments.

Could there be even more under-the-table forces at work? For example, could MGM and Caesars be putting the squeeze on key Obama administration officials (and/or greasing the right palms) to clear the table for their own later entry into the field? Sure. But I don't go there, in the absence of evidence. There's no need to postulate a conspiracy of that sort when the ordinary, ubiquitous motives of personal ambition adequately explain what we see happening. You know, Occam's razor and all that.

If anybody tries to tell you that this set of indictments does not have a strong political element, they're either lying or ill-informed. It IS political.