Prosecutorial State Flexes Its Muscles

It’s the operating premise of a police state that a citizen is never above suspicion, guilt is always the presumption, innocence is a verdict indefinitely deferred. America is not yet a police state. But it is a prosecutorial state. All one can say, with hope though not with confidence, is that perhaps the prosecution of Bill Clinton will provoke resistance to this trend.

For almost three decades, evermore powerful prosecutors have roamed America. Conservatives, plowing yesterday’s furrow, rant on about the power of judges. But in truth judicial puissance is, these days, a mangy thing when weighed against the power of prosecutors, who cut the deals and dictate the pleas, while judges’ hands are tied by mandatory sentences that flout the constitutional precept of the separation of powers.

Federal prosecutors now boast of a 90% conviction rate. The U.S. 10th Circuit Court of Appeals has just reaffirmed their right to offer favors and bribes to witnesses agreeing to testify on their terms. Clinton’s travails at the hands of prosecutor Ken Starr and the House Republicans offer lurid illustration of the prosecutorial state in action, with prominent House managers of the impeachment trial all being former prosecutors: Ed Bryant (former U.S. attorney in Tennessee), James Rogan (former deputy district attorney in Los Angeles County), Asa Hutchinson (former U.S. attorney in Fort Smith, Ark.) and--now somewhat sidelined because of his uncouthness--Bob Barr (former U.S. attorney in Georgia). These gentlemen are attuned to the same techniques as those used by Starr’s team of prosecutors, whereby protection against self-incrimination--a constitutional right--is circumvented by the offer of immunity.

The immunity bargain is for public performance of prearranged testimony, extorted by a threat of prosecution. “Perjury” consists in not performing the testimonial act as scripted by prosecutors. Prosecutors have turned the grand jury--in ancient times a citizen’s weapon against the powerful--into a secret inquisitorial body that issues indictments after depriving the accused of the right to counsel and after circumventing preliminary hearings, in which Bill of Rights protections used to be recognized.

The prosecutor’s office is a well-trodden avenue to political advancement. Congress swarms with them. There are in Congress some 65 former prosecutors, most of them infected with the habitual disdain of their profession for constitutional rights and protections. In the interest of balance, I should point out that one of Clinton’s most unctuous defenders, Rep. Marty Meehan, is a former assistant district attorney in Massachusetts.

Former public defenders, who know the way the prosecutorial state truly works, are much harder to find; only eight in Congress. Their function isn’t liable to allure big contributors and most of them are usually too exhausted to spend evenings and weekends on the circuits necessary for political advancement.

As Kenneth Anderson, law professor at American University has pointed out, conservatives and liberals both have their reasons for furthering the prosecutorial state. The conservatives, unless they are of eccentric libertarian bent, like police power. The liberals, unless they are of eccentric libertarian bent, find boundless opportunities for social engineering if they can write a statute book offering boundless pretexts for charging people with crimes. Clinton may have lied, but provisions of the law that occasioned those probable lies--allowing prosecutors to review a person’s private history--are outrageous invitations to intrusiveness, akin to defense attorneys exposing a woman’s consensual sex life in rape cases. Lying at this level is an entirely justifiable act of resistance, though neither Clinton’s lawyers nor his defenders have cared to adopt this argument. As president, Clinton has been a zealous expander of the prosecutorial state, and there is no sign that impeachment has chastened him. The final ruse of the prosecutorial state is to avert any possibility of a conclusive verdict of innocence. Thus the argument this week by Sen. Orrin Hatch of Utah and other Republicans: If the Senate won’t convict Clinton by the necessary two-thirds margin, then convict him by a straight majority and declare that the Senate accedes to the House’s articles, and votes for “impeachment without removal”! By which he actually means, conviction without removal.

Anything for a guilty verdict. It’s the same mentality that seeks to destroy the need for unanimity in a courtroom jury; from 12-0 to 10-2 and then maybe 9-3, before the jury is dispensed with and the prosecutorial state reigns supreme.