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Chapter 3. When All Bets Are Off: Presidents, Vice Presidents, and Their Family Members on Trial
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chapter 3 When All Bets Are off Presidents, Vice Presidents, and Their Family Members on Trial The 1870 statute that formally established the Department of Justice granted the new agency “control over all criminal prosecutions” in which the United States maintained an interest, and it vested its head officer with control over all “federal law enforcement.”1 In the case of misconduct by public officials, the operating presumption of the Justice Department appeared straightforward: its staff of US attorneys and other prosecutors would actively investigate and prosecute any and all cases against federal officials, supervised by an attorney general who could make impartial decisions in those cases or, alternatively, defer to deputies and assistant attorneys general who could. In this age of the revolving door between government and industry, proper management of conflicts of interest has become the price of conducting government business. And the sheer size of government has increased the number of conflicts that arise even within government itself. This is especially true in the case of government lawyers, whose duty of loyalty to their client (in this case, the US government) expressly prohibits them from taking on assignments that create the appearance of impropriety or conflict of interest. Given these strictures, allegations lodged against the president of the United States are especially problematic. Is there any Justice Department prosecutor who would not find himself or herself caught in a web of conflicts while investigating such matters? Given the vice president’s position in the hierarchy, and the political symbolism attached to it, allegations against the vice president pose problems and conflicts similar to those posed by allegations against the president. And allegations leveled against the president’s family members are likely to create issues equally treacherous for a federal prosecutor who must defer to the attorney general and, ultimately, to the president of the United States as well. The presumption against deviating from routine Justice Department investigative procedures does not simply disappear under these circumstances. While a Justice Department prosecutor has to wonder about the political implica- 62 • chapter 3 tions of his or her investigation and prosecution of a sitting president or vice president, appointing a special prosecutor may tip the balance too far to the other side, as the new prosecutor seeks to justify the decision to deviate from routine procedures in the first place. Recognizing this problem, some special prosecutors and independent counsels—including Whitewater Independent Counsel Kenneth Starr—have introduced incentive structures into their offices designed to “reflect, in essence, the Justice Department at its very best,” including an elaborate pre-indictment review process and a staff of investigators whose backgrounds “reflect the experience and concerns of the prosecutors within the department.”2 Of course, as one writer aptly notes, such a strategy of “replication” is flawed from the outset: the decision-making processes in the Department of Justice are in fact “multilayered” and “infused with the institutional memory of long-serving career officials.”3 Additionally, the staff recruitment process itself, no matter how fairly conducted, disproportionately attracts those from the opposition party, and those who dislike the president most are “apt to stick around the longest.”4 No mathematical formula can pinpoint some magical “mean of aggressiveness ” in a prosecutorial office, and attempting to pinpoint one by adhering to strict rules for hiring independent counsel staffs is an ineffective strategy at best. Nor is it wise to hamper independent or special prosecutors at the outset with artificially imposed restrictions. Attorneys general and other political officials must accept the premise that while special or independent prosecutors offer significant benefits, such as circumventing the problem of conflicting loyalties, they also carry with them significant disadvantages, such as reduced accountability in expending resources. These factors tend to be even more exaggerated when the president or vice president is the target of an investigation, but they are also relevant when a president’s family members become targets of their own federal investigations. In the final analysis, no statutorily authorized special prosecutor or independent counsel provisions can significantly reduce the element of discretion that an attorney general must exercise when considering the need for a special counsel. Inquiries into that need should include these questions: • Do the allegations of criminal activity clearly and directly implicate the president or vice president, or do they do so only indirectly? • For how long have Justice Department prosecutors already been involved in the investigation, and to what degree are they involved? • Are Justice Department officials, past or present, implicated in the...