At KnowYourCOurts.com, we specialize in judicial scandals. And, as luck would have have it, most of them involve Republican appointees -- like the District of Colorado's Chief Judge, the disgraced Eddie Nottingham. We also educate and inform readers about the death of civil rights litigation in America and the Republicans' scheme to close the courthouse doors to the poor.
Like you, I'm frustrated to the point of tears at Clinton's cowardice and Feinstein's fecklessness in the face of the most ruthless administration since Stalin's. But today, I'd like to propose a solution.
In a sense, we love having the Sheriff of Naughty-Ham to kick around, as analogy to the Robin Hood legend is irresistible. In old Nottinghamshire, the tyrannical and evil Sheriff became almost a law unto himself -- parking his horse in handicapped parking spaces, drinking himself into a stupor at a local strip club (Stained Glass Cabaret), one-handed surfing for fair couples (presumably, his wife stayed home at the castle) in his office, and ruthlessly oppressing the people he swore an oath to serve. The King could not hear the cries of the people -- not that our own King George II would really care -- and the people were forced to take matters into their own hands. It is from this fertile English tradition that the so-called ‘prerogative writs’ -- mandamus, habeas corpus, scire facias, and the right to initiate private prosecution -- sprang.
[NOTE: I have been reminded to make it clear that
KnowYourCourts is non-partisan
; it just happens that most of our really juicy scandals involve Republican judges.]
Under the common law, any commoner could march into a courtroom and charge a public official with a crime -- and actually prosecute him for that crime in the courts of the day. In this essay, I am going to suggest that we still have that right, and might be able to do something about the rogues of the Bush Administration.
Historical Background of Private Prosecution
As Canada’s Department of Justice reminds us, the right to initiate a private criminal prosecution has a pedigree as old as the common law itself:
A private citizen's right to initiate and conduct a private prosecution originates in the early common law. From the early Middle Ages to the 17th century, private prosecutions were the main way to enforce the criminal law. Indeed, private citizens were responsible for preserving the peace and maintaining the law:
[U]nder the English common law, crimes were regarded originally as being committed not against the state but against a particular person or family. It followed that the victim or some relative would initiate and conduct the prosecution against the offender ...
Another feature of the English common law was the view that it was not only the privilege but the duty of the private citizen to preserve the King's Peace and bring offenders to justice.
Because of the increase in courts and cases in the Middle Ages, the King began to appoint King's Attorneys to intervene in matters of particular interest to the King. Intervention took two forms. The King could initiate and conduct certain prosecutions through a personal representative. The King could also intervene in cases begun by a private prosecutor where the matter was of special concern to the King. By intervening, the King's Attorney could then conduct or stop the proceedings. As the English common law developed, the role of Crown law officers grew. Still, private prosecutions were allowed. To this day they are recognized in several English statutes.
Canada Dept. of Justice, The Federal Prosecution Service Deskbook Part IV, ch. 26 (emphasis added; copy on file).
The threshold question is whether this right and duty -- an immutable individual right since the very dawn of the common law, indispensable to the preservation of personal liberty -- was extinguished in 1787. If the answer is no, then we have the power to appoint ourselves to act as private attorneys general, and prosecute the war criminals in our midst.
Importation Into American Law
The United States Constitution is a blueprint for a strictly limited government. Articles One through Three identify what the government is authorized to do, and the Bill of Rights says what it cannot do in order to achieve those identified tasks. But without a Bill of Rights, there would, in all likelihood, have been no United States.
On June 8, 1789, James Madison proposed twelve amendments to the Constitution, which is the foundation for our modern Bill of Rights. But more importantly for our purposes, he went to some pains to explain why these amendments were necessary. Two states (North Carolina and Rhode Island) had yet to ratify the Constitution, and two important states had done so, but only just (New York and Massachusetts). Opposition to the new Constitution was strong, centering around one main objection. Madison explains:
I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provison [sic] against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.
I Cong. Register, __ (statement of Rep. Madison).
What were these safeguards the people had become long accustomed to? Trial by jury, instead of a representative of the Crown. Bail. The right of confrontation. And of course, the prerogative writs.
Apart from explicit protection of the four pillars of freedom -- the soapbox, the ballot box, the jury box, and the ammo box -- Madison scrupulously avoided any attempt to identify the rights of the people. His embryonic version of the Ninth Amendment reads as follows:
The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
Id (emphasis added).
It was the Framers’ intent that, where there was an ambiguity, it be resolved in the favor of the rights of the individual. Further, as our Constitution is the paramount law of the land, Reid v. Covert, 354 U.S. 1 (1957), the only way that a citizen can lose a fundamental right is for the Constitution to extinguish it. Consequently, if the right to initiate a private prosecution was an essential safeguard against the abuse of power by the magistracy and therefore, one of the citizen’s fundamental rights at common law, the courts can't stop you from exercising it unless they can find a place in the Constitution where it was taken away.
While the Bush Administration will almost certainly take the position that the charge to the President that "he shall take Care that the Laws be faithfully executed," U.S. Const. art. II, § 3, somehow invests the Executive with plenary power in such matters, there can be no historical warrant for such a posi- tion. Both the New York, N.Y. Const. art. XIX (1777), and Pennsylvania constitutions, Pa. Const. § 20 (1776), enacted a decade before their federal counterparts, had virtually identical clauses. They were certainly not interpreted as prohibiting private prosecutions; in fact, in the city of Philadelphia, private prosecution had evolved into a sort of blood sport, giving rise to the hackneyed phrase, "Philadelphia lawyer." See generally, Allen Steinberg, "The Spirit of Litigation:" Private Prosecution and Criminal Justice in Nineteenth Century Philadelphia, 20 J. Social History 231 (1986). Given that the Framers almost certainly purloined that phrase from the constitutions in question, and private prosecution was a universal practice in those days, any suggestion that they had intended to extinguish it through the invocation of that innocuous phrase blazes new trails in absurdity.
That having been said, any power is amenable to abuse; Congress has the constitutional authority under the Necessary and Proper Clause to take care that only meritorious private prosecutions proceeded. And that is precisely what federal statutory law does:
Except as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties.
28 U.S.C. § 519.
If private prosecutions are permissible, it is equally permissible for the Attorney General to supervise their conduct. This makes intuitive sense: when you assume the role of a private attorney general, your act is the act of the State, and you carry the mantle that every attorney general rightfully carries:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935). It logically follows that, while he cannot make a charging decision, the Attorney General ought to have sufficient authority to ensure that a private prosecution is done properly.
A Remedy Made For Times Like These
Over the past few years, the Department of Justice has evolved into less of an institution than it is a punch-line. Just in the last year, a former Republican Attorney General described the Department as a political hit squad, Allegations of Selective Prosecution: The Erosion of Public Confidence in Our Federal Justice System, Hearing Before The House Judiciary Subcommittees on Crime, Terrorism and Homeland Security and Commercial and Administrative Law, Oct. 23, 2007 (testimony of Richard B. Thornburgh), and the ever-candid Senior Judge John L. Kane of our District admitted in correspondence that it will take "a minimum of twenty years" for it to be restored to its former luster. John L. Kane, e-mail (to "Randy King"), Oct. 17, 2007 (copy on file). Also, we have learned that (1) staff attorneys are hired on the basis of their political persuasion (2) by political hacks who believed that they owed "loyalty" to the President (as opposed to the Constitution), Firing Of United States Attorneys, Hearings Before the Senate Judiciary Committee, July 11, 2007 (testimony of Sara Taylor, White House Political Director), and "knew that they crossed the line," Leigh Ferrara, Monica Goodling: 'I Know I Crossed the Line', Mother Jones, May 24, 2007, and that the Attorney General (3) also purged a number of capable attorneys from the Department for refusing to participate in political hits, and (4) may have even tampered with a witness. See, Dan Eggen, Gonzales Defense Fund Set Up: Former Attorney General's Legal Fees Mount in Probe, Washington Post (Nov. 15, 2007) at A-3.
To be perfectly honest, matters aren’t that much better on the home front. Our United States Attorney was replaced by former Jack Abramoff associate Troy Eid, who apparently lied about activities taken on behalf of Abramoff’s most infamous client. Specifically, Eid lobbied Interior Secretary Norton on behalf of the Mashpee tribe in November, 2003, Sean Gonsalves, Tribal Lobbying Produced Results, Cape Cod Times, Oct. 21, 2006 -- the same Mashpee tribe represented by Abramoff, Mashpee Chairman Happy With Abramoff Work, Indianz.com, Nov. 22, 2005, -- but evidently, never reported his lobbying efforts, Did CO's USA Hide His Abramoff-Related Lobbying?, The Next Hurrah, May 1, 2007 (visited Oct. 24, 2007; copy on file; the link to Eid’s lobbying disclosure form is broken), and the Greenberg, Traurig lobbying disclosure form, http://sopr.senate.gov/... seems to have disappeared. United States Attorneys, "like Caesar’s wife, must be above suspicion," Leeson v. General Council of Medical Educ. & Registration, 43 Ch.D 366 (1889), but the current crop is anything but. See, Greg Palast, Bush’s New US Attorney a Criminal?, GregPalast.com, Mar. 28, 2007 (re: current United States Attorney Tim Griffin’s alleged involvement in a vote-caging scandal).
The Department of Justice is so out-of-control that it refuses to prosecute government officials who participated in waterboarding, Mukasey Says He Won't Prosecute Waterboard Use, National Public Radio, Feb. 8, 2008 (with audio), despite the fact that in World War II, the Allies executed Japanese soldiers who engaged in it on the ground that it constituted a "crime against humanity." E.g., Evan Wallach, Drop By Drop: Forgetting the History Of Water Torture In U.S. Courts, 45 Colum. J. Transnat’l L. (draft dated Oct. 16, 2006; copy on file). Conversely, vocal opponents of the Bush regime (including former Justice Department ethics attorney Jesselyn Radack, Jesselyn Radack, Canary in a Coal Mine, and activist author Naomi Wolf, Naomi Wolf, Speech(at the University of Washington), Oct. 11, 2007) are routinely placed on the TSA’s "no-fly list" in retaliation for their free speech -- this is but one in a distressingly long list of federal felonies this Department has looked askance at. Scott Horton of Harper’s observes, "Indeed, the Justice Department has a practice of launching [a] vendetta against anyone who questions the Justice Department these days." Scott Horton, "A Primer In Political Persecution," Harper’s (Oct. 24, 2007).
When men of such gravitas as Attorney General Thornburgh, Professor Alan Dershowitz (with respect to the persecution of Geoffrey Fieger, Alan Dershowitz, Letter (to John Conyers, Jr., Chairman of the House Judiciary Cmte.), Oct. 22, 2007), senior federal district court judge John L. Kane, and forty-four state attorneys general (with respect to the Siegelman case, Jeffrey A. Modisett, Petition (to the House & Senate Judiciary Committees)) are saying precisely the same thing, and the New York Times is writing editorials to this effect, Tilting the Scales of Justice, New York Times, Oct. 24, 2007, it can hardly be dismissed as a mere figment of one’s imagination. For far too long, the Department has steadfastly refused to prosecute the most blatant of crimes for naked political purposes, while expanding the definition of mail fraud to include the theft of pencils, when it serves the ruling party’s political agenda. See Sean Hamill, Pathologist Accused of Profiting From Office, New York Times (Jan, 28, 2008).
We have an Executive branch that is above the law and beyond the law, that has packed both the courts and our law-enforcement agencies with henchmen (like Judge Mukasey) who will look the other way. We have a feckless Congress, fixated upon steroid abuse to the exclusion of all else. No one is left standing to defend the rights of the individual.
The bell tolls for us.
Practical Considerations
Obviously, if this plan is tried under cover of night, it has no real chance of success. But if the media trained their eyes upon it, and a sufficiently credible (don't hire Mark Geragos!) law firm presented it, some judge might feel just enough heat to consider the argument on its merits.