In the United States, the federal government’s Department of Justice (DOJ) plays a huge role in the prosecution of state-level public corruption: Over the past five years, federal prosecutors have obtained the convictions of approximately 1,700 corrupt state and local officials for corruption-related offenses. Examples range from prominent and powerful figures like Sheldon Silver, the former Speaker of the New York State Assembly, to low-level functionaries like Eloy Infante and Elpidio Yanez, Jr., two former members of the School Board of Donna, Texas.
The federal government’s primacy in prosecuting state and local corruption is no accident. One of the stories of American law enforcement in the 20th century, especially though not exclusively in the anticorruption context, is the expanding role of the federal government, an expansion that was in part a reaction to the perceived deficiencies of state law enforcement. Most states in the U.S. elect both prosecutors and judges, and concerns that these elected officials were under-resourced, incompetent, partisan, or captured by local influence-peddlers contributed to the rise of federal criminal law enforcement. The federal government’s role in prosecuting state and local corruption blossomed in the 1970s, with regional U.S. Attorney’s offices taking the lead, supported by a new DOJ Public Integrity Section in Washington, D.C. The U.S. Attorney’s offices were considered more independent and less vulnerable to capture than local law enforcement, were generally better resourced than their state and local counterparts, and were able to focus those resources on picked cases.
This system has worked well and achieved considerable success. Many argue—with justification—that the federal government’s central role in prosecuting state and local corruption was instrumental in breaking the stranglehold of corrupt political machines at the subnational level. But today, it’s important for state prosecutors to do more to supplement, and in some cases perhaps supplant, federal anticorruption prosecutions. If the story of the 20th century was a distrust of states to police their own politicians, the early 21st century story may be that we can no longer completely trust the feds to do it either. There are three main reasons why, going forward, we may need to rely increasingly on the states:
- First, and most straightforwardly, there’s only so much the federal government can do, particularly in an era of shrinking DOJ budgets and a reallocation of resources towards national security and immigration issues. Federal prosecutors choose their cases, and while the feds do take on “small” cases (see, for example, the school board corruption case noted above), they primarily, and understandably, tend to focus on high-profile cases. But there’s a great deal of corrupt activity that, while perhaps “too small” for the feds to investigate and prosecute, is cumulatively quite important. State-level enforcement that supplements federal anticorruption efforts will be valuable simply by virtue of devoting more resources toward stemming corruption nationwide.
- Second, the Supreme Court’s more restrictive interpretations of the key federal anticorruption statutes—most notably in the decision that vacated the conviction of former Virginia Governor Bob McDonnell—have made it more difficult for federal prosecutors to convict officials for public corruption. (See, for example, the highly publicized decision by the DOJ in the wake of the McDonnell decision to drop charges against U.S. Senator Bob Menendez.) State anti-bribery law isn’t controlled by the Supreme Court’s interpretation of federal bribery statutes, and therefore can be more expansive than current federal law.
- Third, political interference with the DOJ’s anticorruption work—once unthinkable—has become a much greater concern, particularly under President Trump. Since taking office, the President has repeatedly attacked the independence of federal law enforcement, from his notorious and inappropriate meetings with former FBI director James Comey, to his unexpected sacking of several U.S. Attorneys, to his regular broadsides against Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election. The President’s onslaught threatens to erode precious norms governing prosecutorial independence in the U.S. But even if those norms hold firm and President Trump’s politics don’t infect the DOJ’s anticorruption agenda, the President can still subvert the DOJ’s work by pardoning anyone convicted of federal offenses, a real concern given the extent of the Trump administration’s exposure to potential corruption charges. State prosecutors, by contrast, are not subject to Presidential control, and the President has no power to pardon those convicted of state crimes. These features make state prosecutions an effective alternative in the event federal prosecutors are unable or unwilling to bring corrupt officials to justice. The case of Paul Manafort, though exceptional, is illustrative here. Manafort, President Trump’s one-time campaign chairman, pled guilty in September to federal fraud charges stemming from the Mueller investigation. If President Trump pardons Manafort for his federal crimes, Manafort could subsequently face indictment under state law (see here and here).
Some states are already doing plenty of anticorruption work. For example, the New York and New Jersey Attorneys General maintain public integrity bureaus in their offices and publicize their anticorruption efforts (see here and here). However, other states appear to have no dedicated public integrity staff at all. (See, for example, Delaware, Nebraska, and South Carolina.) It’s time for these states, and others, to take a more active role. With a more difficult federal enforcement environment and fears of politicization at the DOJ, state prosecutors should step in where there are cases the feds can’t or won’t prosecute. This will help state prosecutors “keep the knives sharp,” so to speak, will provide an effective backstop to federal prosecution should the President pardon someone like Manafort, and will lead to more resources deployed in the fight against corruption.