Jennifer Rodgers, Executive Director of the Columbia University Law School’s Center for the Advancement of Public Integrity (CAPI), and Izaak Bruce, CAPI Research Fellow, contribute the following guest post:
Last fall, New York County District Attorney Cyrus Vance received quite a bit of negative press for his handling of potential cases involving some high-profile potential defendants. In one case, Vance declined to bring sexual assault charges in 2015 against Harvey Weinstein despite a detailed victim account. In another case, back in 2012, Vance ultimately decided not to criminally charge members of the Trump family for making false and misleading statements to promote one of their real estate ventures, again despite what on the surface appeared to be credible evidence of wrongdoing. Of course, prosecutors have to make difficult judgment calls all the time about what cases to bring, often based on information that outsiders do not have access to and/or are not in a good position to judge. But what made these cases so troublesome to many was the suggestion or insinuation of improper influence. The New York County DA is an elected position, and in both the Weinstein case and the Trump case, the attorneys who successfully convinced Vance not to bring charges also made hefty donations to Vance’s reelection campaign.
Vance and his supporters insist that there was no impropriety, let alone a quid pro quo, and rightly point out that DAs raise substantial campaign contributions from many attorneys. But the reports were nonetheless deeply troubling, not least because these incidents evince a more general problem. In a couple of cases, DAs have been convicted for accepting campaign contributions as bribes in exchange for favorable defendant outcomes; much more common, however, is the appearance of impropriety caused by campaign donations from individuals involved in cases before the district attorney’s office; these are problematic even if no underlying crime is proved. And of course there is always the possibility of unconscious bias when a DA makes decisions about criminal cases that involve a campaign donor, even if the DA believes his or her decision making is unaffected. Yet despite these obvious problems, there are very few legal limits on donations by individuals to district attorneys, either in New York or elsewhere. In New York, for example, campaign contributors can give a DA candidate up to the maximum amount (almost $50,000 in New York County) with no regard for whether those contributions might lead to a conflict of interest or an unconscious bias on the part of the district attorney. And there is virtually no guidance for DAs on how to handle these potential or apparent conflict-of interest issues.
To help address this problem, my organization, the Center for the Advancement of Public Integrity (CAPI) at Columbia Law School, recently released a report on DA fundraising practices. DA Vance, to his credit, specifically requested this review, which included an examination of his own campaign fundraising practices. In conducting its review, CAPI considered the donation acceptance policies of DA Vance’s campaign, and analyzed contributions to his campaigns over his three election cycles, paying particular attention to contributions from attorneys. CAPI conducted research into applicable laws, regulations, and guidance for DAs, and lawyers generally, in this area, and interviewed numerous stakeholders on the topic, including DAs, election regulators, good governance groups, and legal ethics experts, to learn from their experiences and solicit their views. After conducting this review, the report offered seven recommendations for DAs to follow to avoid actual and potential conflicts of interest and biases. While these recommendations are geared to DAs in New York, they are instructive for elected prosecutors all over the United States:
- Apply Blind Fundraising Standards: DAs should not personally solicit contributions, and to the extent possible should be shielded by their campaigns from learning the identity of donors or the amounts given. DAs who are unaware of their donors’ identities more easily avoid conflicts of interest related to those donors. This recommendation is based on the blind fundraising practices that elected judges in New York are already required to follow.
- Refuse or Limit Contributions from Parties with Actual or Potential Conflicts of Interest: DAs should not accept contributions from individuals who are parties to matters before the office, including defendants and other participants in cases, or from targets of investigations. DAs should impose a strict cap on donations from lawyers who represent clients before the office and should also impose a cap on donations from those lawyers’ law partners. For large counties, CAPI recommends setting caps based on the NYC Doing Business regulations for city elections: $320 for lawyers appearing before the DA’s office and $3,850 for their law partners. For smaller counties, CAPI recommends caps at 1% (but not less than $250) and 10% of the state law maximums for appearing lawyers and their partners, respectively.
- Enforce a Strict Division between the DA’s Campaign and the DA’s Office: Maintaining this separation will further insulate the DA’s office from political activity and from knowledge of contributions.
- Refuse Campaign Contributions from DA Office Staff and Their Spouses. While New York City DAs already refuse contributions from employees of the DA Office, as required by city rulings, several New York DAs outside of New York City actively solicit donations from their subordinates. Some defend this practice by arguing that their subordinates depend on the DA’s reelection for continued employment. Notwithstanding this, the potentially coercive nature of soliciting from subordinates and the likelihood of undermining the apolitical nature of the district attorney’s office means that refusing such contributions is the better practice.
- Utilize a Comprehensive Vetting Procedure: Vetting procedures will be required to effectively implement Recommendation 2, and will also serve as a final check on whether it is prudent to accept a legal campaign contribution, even from a donor not falling within one of the prohibited categories. Keeping these decisions away from the DA by delegating this responsibility to a trusted individual or committee will both help to prevent actual and potential conflicts of interest and will maintain the blinding procedures set forth in Recommendation 1.
- Require Donors to Certify Eligibility to Contribute: As a first step in vetting campaign contributions, DAs should require donors to fill out forms that include a certification that the donation is in compliance with relevant laws and with the DA’s fundraising policies.
- Publish Campaign Policies: The transparency resulting from making donation acceptance policies publicly available will help the office and campaign staffs to understand and implement the procedures more effectively, will better ensure compliance by donors, and will reinforce the public’s trust in the DA’s honesty and integrity.
It is heartening to report that DA Vance has already announced that he is adopting CAPI’s recommendations, and some of the resulting changes are already visible on the campaign website. CAPI is interested in working with other DAs, in New York and elsewhere, who are interested in implementing these and other reforms, and also hope to eventually push for legislative changes, since making campaign finance reform mandatory, permanent, and enforceable will ultimately require legislative action. In the meantime, CAPI’s recommendations can help interested DAs to address conflicts concerns in a meaningful way while still allowing them to raise money to fund their re-election campaigns.
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Thank you for introducing potential ways District Attorneys might address the thorny issues around campaign contributions. You make an interesting point about refusing or limiting contributions from parties with potential conflicts of interest. How might a District Attorney navigate refusing campaign contributions when a potential donor does not know he is the target of an investigation and might pose a conflict of interest? Additionally, if there are blind fundraising standards in place, but the campaign accepts a donation from such a target, will a District Attorney still encounter criticism for accepting the contribution if he decides not to charge the individual?
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