Amidst Elliot Spitzer’s dramatic meltdown, most attention seems to be focused on his personal scandal and his troubled term as governor. To me, Spitzer’s legacy as attorney general is the much more compelling issue. While I was not a fan of much of his work, I was by no means a reflexive opponent of all of his efforts. Similarly, while I never took his invocation of federalism at face value, I still think that it would be an error to dismiss his assertion of state power out of hand.
Reading ex-prosecutor Andy McCarthy’s insightful take on Spitzer this morning, I recalled Robert Jackson’s famous address to the U.S. attorneys . Nearly 70 years later, Jackson’s speech — “The Federal Prosecutor” — fit Spitzer’s political funeral:
… The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. … 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.
There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. … We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.
If the prosecutor is obliged to choose his cases, it follows that he can choose his 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. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.
In times of fear or hysteria, political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views.
T he qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway.