Yesterday’s New York Times featured two stories, one from Russia and the other, from New York, that illustrate the corrupting potential of anti-corruption prosecutions. A Russian handed out six extra years of imprisonment to Mikhail Khodorkovsky, former billionaire magnate chief of the now-defunct oil company Yukos. Meanwhile, New York AG and governor-elect Andrew Cuomo settled a civil suit against Steven Rattner, financier and political insider accused of participating in a kickback scheme to win business investing New York’s pension funds. Neither Khodorkovsky nor Rattner were angels: Both had, at the very least, been mired by a general culture of “pay-to-play” crony capitalism. But both also were arguably singled out for being vocal opponents of the government. In Khodorkovsy’s case, it seems to be indisputable that the entire prosecution was an effort to eradicate one of Putin’s more vocal political enemies. In Rattner’s case, Cuomo’s office retaliated against Rattner for defending his reputation out of the courtroom in a transparent effort to tarnish his reputation with misleading leaks of testimony, declaring that “when [Rattner] was questioned under oath about his pension fund dealings, he was much less talkative, taking the Fifth and refusing to answer questions 68 different times.” Given how easily loose talk under oath can land a hapless witness in a perjury prosecution, one can only be amazed at the sheer effrontery of Cuomo’s press release: Of course, Rattner kept mum. Cuomo’s brandishing this normal caginess sounds unnervingly like prosecutorial catch-22. Say too little under oath, and we’ll slime your reputation; Say too much, and we’ll hit you with a perjury charge.
Both the Rattner and Khodorkovsky cases, in short, involve criminal or civil prosecutions against politically active magnates in which there is a plausible claim of both private misconduct and also prosecutorial vindictiveness. What can be done about such potentially corrupt anti-corruption campaigns? Although these charges are a great way to silence those people powerful enough to be effective critics of the government, the very power of the targets allows prosecutors to claim plausibly that they are enforcing the law impartially against the powerful. Is there any way to control this sort of prosecutorial discretion without giving private power immunity from the law?
Eliot Spitzer’s tactics are the most salient recent American example of what I call corrupt anti-corruption campaigns. The Sheriff of Wall Street engaged in tactics that ranged from merely abusive (e.g., allegedly pressuring AIG’s board into firing Greenberg for committing offenses that, as it turned out, Spitzer lacked evidence to prosecute) to the downright oppressive and corrupt (e.g., allegedly threatening former Goldman Sachs John Whitehead that “I will be coming after you. You will pay the price” for writing an op-ed piece unfavorable to Spitzer). Peter Elkind’s recent book about Spitzer seems to bear out Whitehead’s account of Spitzer’s threat, yet, such is the popular appeal of Spitzer’s bringing down the mighty, that this vicious threat against Whitehead has never posed as much of a threat to Spitzer’s rehabilitation as his shenanigans as Client Number 9.
How can this sort of corrupt selectivity in prosecution be curtailed without excessively weakening government’s capacity to control private power? SCOTUS seems to rely exclusively on the idea of lenity, as
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I fail to see how Spitzer and Cuomo’s civil suits against Steven Rattner, Hank Greenberg, and others exemplify “corrupt selectivity in prosecution,” let alone merit comparisons to Putin’s Kremlin.
First, they’re civil suits, not prosecutions. There are plenty of US examples in which business and political defendants have faced arguably selective *criminal* prosecutions (Ted Stevens, Skilling and Lay, etc.) so singling out Cuomo and Spitzer’s civil investigations for comparison to the Khodorkovsky fiasco seems particularly unfair.
Second, none of the targets were “singled out for being vocal opponents of the government.” The comments by Rattner that Cuomo objected to came *after* Cuomo brought the suit, so obviously the suit couldn’t have been brought because of the comments. And John Whitehead, who was yelled at by Spitzer, was never the target of an investigation; in fact, according to the book you cite, Spitzer tried to make amends with him weeks later. Meanwhile, who on Wall Street was let off easy?
There’s no doubt that US prosecutors sometimes bring cases to generate headlines. But this is fundamentally different from bringing transparent cases against political opponents, which is relatively rare in the US (Rattner, for example, is an active Democrat.) And it seems to be more a matter of careerism and ego than politics, despite the best efforts of Karl Rove. In any event, the New York AG’s office, particularly under Cuomo, is one of the least offenders. I’m sure it was very unpleasant for John Whitehead to be screamed at by Eliot Spitzer, but that doesn’t make Spitzer a dictator.
Posted by: AF | Jan 2, 2011 12:38:23 PM