Shoddy Craftsmanship: How Not to Design an Independent Prosecutor

There is a reason that New York Governor Andrew Cuomo has graced the pages of the Global Anticorruption Blog so many times in recent months (see here, here, here, and here): life just isn’t easy for a candidate who campaigns on promises to clean up politics only to drown in allegations once in office. Today I offer another installment in our (entirely unofficial) series on the trials and tribulations of New York’s Governor: “Designed to Fail: Andrew Cuomo’s Interactive Guide to Building an Independent Anticorruption Prosecutor. (Parts Sold Separately).”

In July 2013, Gov. Cuomo created the “Moreland Commission to Investigate Public Corruption” after a string of state legislators were arrested on corruption charges. In an effort to finally clean up New York politics, Gov. Cuomo promised that the two-year Commission would be independent and free to pursue corruption throughout state government, including in his own administration. The 25-members of the Commission — many of whom were current or former prosecutors — were authorized to investigate campaign finance and financial disclosure violations, conflicts of interest, bribery, and other forms of political corruption.

Unfortunately, notwithstanding the public promises, Gov. Cuomo’s administration frequently intervened in the Commission’s investigations, and ultimately shut it down entirely in March 2014. Why did Gov. Cuomo terminate the Commission more than a year early? The superficial answer is that he traded the Commission’s existence to (since-indicted) New York House Speaker Sheldon Silver in exchange for passage of an ethics bill (and not a particularly strong one). But the real answer is more troubling: Gov. Cuomo was concerned that the Commission had begun investigating organizations with close ties to his administration. (For his part, Silver wasn’t keen on the Commission looking into outside income earned by New York’s part-time legislators, a loophole that, as Sarah recently recounted, allowed him to hide millions in kickbacks.)

Besides prompting an investigation by U.S. Attorney Preet Bharara — a topic discussed by Anna in a previous post — Gov. Cuomo’s decision to shut down the Moreland Commission offers an object lesson in how NOT to design independent anticorruption prosecutors. From the Teapot Dome Scandal to Watergate, independent prosecutors have long played a vital role in combating entrenched political corruption in the United States. The reason is simple: you can’t always trust law enforcement agencies to root out corruption among their professional colleagues or the political forces that control their budgets and personnel.

But independent prosecutors are only truly valuable to the extent they remain independent. For, as the Moreland Commission fiasco teaches us, nominally independent prosecutors who remain subject to even informal political control often find that they are tolerated only as long as they look only where corrupt officials point. How to prevent politics from undermining the success of independent prosecutors is largely a matter of structural design. To illustrate what I mean, consider the following flaws inherent in the design of the Moreland Commission and what it might have taken to fix them:

  • Lack of Independent Legal Authority: In theory, the commissioners, as deputy attorneys general, were authorized to issue subpoenas, investigate allegations, and refer cases for prosecution as they saw fit. In practice, though, the Governor’s office quickly asserted authority to control the Commission’s subpoenas and frequently pressured the commissioners to withdraw subpoenas issued to organizations tied to the administration or its pet projects. In September 2013, the Governor’s office dropped any pretense of independence and told the commissioners to keep the office in the loop so that it could quash any embarrassing subpoenas. Furthermore, when it came time for the Commission to release its only work product — a preliminary report — the Governor’s office insisted on scrubbing the draft. As these experiences demonstrate, it isn’t enough to authorize an “independent prosecutor” to exercise law enforcement powers; you must also ensure that it can exercise those powers without undue outside influence. To that end, the legal authority establishing any independent prosecutor should prohibit any party — other than a court, subpoenaed entity, or suspect — from requesting or receiving advance notice of, or an opportunity to review, the prosecutor’s subpoenas or charging decisions.
  • No Communications Firewall: According to news reports, the Governor’s chief aide had no qualms about directly contacting the commissioners. Often aided by tips from inside the Commission, he apparently used informal channels of communication to exert pressure on the Commission to drop certain investigations that might embarrass the Governor. To prevent similar problems in the future, strict rules should be put in place to bar any communication, regarding any ongoing matter or investigation, between members of the political establishment and members of the independent prosecutor’s office. The prosecutor should be required by law to disclose any improper contacts.
  • Human Resources and Conflicts of Interest: While the Commission was smartly staffed by experienced prosecutors who could (and did) hit the ground running, it also suffered from a conflict-of-interest problem. The worst offender was a well-connected Democratic operative in the Commission’s leadership, who repeatedly attempted to prevent the Commission from targeting Cuomo supporters and who constantly tipped off the Governor’s office to the Commission’s plans. The antidote? Going forward, an independent prosecutor’s office should be afforded control over its own personnel decisions, and its staff should be subject to broad conflict-of-interest rules that bar any person with strong ties to the incumbent administration or party from participating in the investigation.
  • Insecure Funding and Uncertain Term Length: As the Cuomo-Silver horse trade made clear, the Commission’s two year term was not set in stone. Apparently, in a manner reminiscent of President Nixon’s Saturday Night Massacre, the Governor believed that the Commission served only at his pleasure and could be axed at any time. To prevent future politicians from similarly using an independent prosecutor as a political bargaining chip or from leveraging funding decisions to manipulate the its operations, independent prosecutors should be given set terms and block grant funding that cannot be revoked without broad-based democratic consent.

The basic insight to be gleaned from this story is this: Independent prosecutors who target corruption among high-ranking elected officials can only succeed in proportion to their independence. And as cross-country empirical research suggests, it is de facto independence, not de jure independence, that really counts. In other words, as Cuomo has shown us, words without more are not enough; we must design independent prosecutors to ensure structural independence in the real world.

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