July 22, 2004
IN 1940, Attorney General
Robert Jackson admonished a conference of U.S. attorneys to wield their
power carefully. He warned that a "prosecutor has more control over
life, liberty and reputation than any other person in America" and that
"while the prosecutor at his best is one of the most beneficent forces
in our society, when he acts from malice or other base motives, he is one of
Those words may have been
in Deputy Attorney General James B. Comey's mind when he mandated that
Maryland U.S. Attorney Thomas M. DiBiagio get approval from the Justice
Department before indicting public corruption cases.
In a rare public rebuke,
Mr. Comey sent the Republican Mr. DiBiagio a letter admonishing him for
issuing recent directives pressuring his prosecutors for convictions of
elected officials and seeking "front page" indictments by
What happened to Mr.
DiBiagio last week was stunning not only for its tone, but also for its
rarity. The matter was addressed only because it had become public. And
because there was a hint of partisan intent and timing of indictments, Mr.
DiBiagio needed to be quashed with vigor lest the Justice Department appear
to condone such unethical misconduct.
While most federal
prosecutors are professionals who respect the office they hold and the power
it wields, it is also true that with the ever-increasing powers of federal
prosecutors during the last 20 years, legitimate complaints of prosecutorial
misconduct have increased. This is so because, historically, Justice
Department supervision of U.S. attorneys has been meager.
department has a policy of not reviewing a prosecutor's misconduct if it is
"related to and could be raised in the course of pending
litigation." Justice departments of both political parties have
maintained this inexplicably bereft policy, which invites abuse because
prosecutors know their conduct will not be challenged in a timely manner, if
at all. The Justice Department is able to avoid public scrutiny of such
allegations because they do not become public, as did the DiBiagio matter.
It appears that personnel in his own office complained to The Sun. Usually,
defense attorneys are the complainers, and they are ignored.
Mr. DiBiagio apologized for
his "impatience" in sending the e-mails to his prosecutors. He
Patience and judgment must
be the hallmarks of those who wield this vast, unreviewed power of
investigation and prosecution. U.S. attorneys are not leading a military
campaign. They must seek justice. In so doing, they must exercise restraint
to harness the terrible intrusiveness of the power to investigate, which is
the power to destroy.
Mr. Jackson, in his 1940
speech, called upon U.S. attorneys to rededicate themselves "to the
spirit of fair play and decency that should animate the federal
prosecutor," reminding them that "although the government
technically loses its case, it has really won if justice has been
Mr. Jackson said
prosecutors were duty-bound to "select those [cases] in which the
offense is most flagrant, the public harm the greatest, and the proof the
most certain." But he also warned sternly that prosecutors must
carefully choose their defendants. "Therein is the most dangerous power
of the prosecutor: that he will pick people that he thinks he should get,
rather than pick cases that need to be prosecuted."
Political ambitions of U.S.
attorneys frequently feed suspicions of bias in investigations, especially
when the prosecutor is of a different political party than those being
investigated. When I left office as U.S. attorney for the District of
Columbia in March 1988, I refused to run for elective office. I feared all
the good work of the dedicated men and women in my office would have been
suspect no matter how groundless those accusations would have been.
Mr. Comey, in admonishing
Mr. DiBiagio, apparently heeded Mr. Jackson's final plea to U.S. attorneys:
"The citizen's safety lies in the prosecutor who tempers zeal with
human kindness, who seeks truth and not victims, who serves the law and not
factional purposes, and who approaches his task with humility."
Joseph E. diGenova is a
former U.S. attorney for the District of Columbia and a former independent
counsel of the United States.