America’s Exceptional Anticorruption Prosecutors

“An Albany Powerhouse on the Edge of a Volcano” ran the front page New York Times headline. Sheldon Silver, the long-serving Speaker of the New York State assembly, has been charged with a host of counts of corruption charges. Silver, who has occupied his post since 1994, is the third most powerful politician in New York (after the Governor of the state and the Mayor of New York City). He says he is innocent. Preet Bharara (photo), the United States attorney for the Southern District of New York, supported by extensive evidence uncovered by the Federal Bureau of Investigation (FBI) takes a different view.

The charges against Silver, involving at least $4 million, are all too commonplace in local and municipal politics. They include kick-backs from real estate developers seeking special tax relief and pay-offs by law firms to get lucrative cases from government agencies. Taking on a politician as powerful as Silver takes courage, but prosecutor Bharara is following in the footsteps of a host of other courageous U.S. public prosecutors in recent years.

Indeed, it is this tradition that singles out the U.S. from so many other countries. Like other nations use have plenty of corruption in public life. But, unlike so many others, our public prosecutors are fearless and determined to see that those who abuse their public offices for personal gain are brought to justice. The driving motives and approaches of our leading prosecutors were center stage at a seminar I recently attended at Columbia University Law School’s Center for the Advancement of Public Integrity.  Fundamentally, they believe that the very core of what America’s ‘Founding Fathers” sought to ensure is that citizens are served by honest politicians.

 

INTEGRITY

“The values of integrity and open government and democracy are foundational to our nation and thus we assume that all who serve in public service are expected to do so with full integrity,” says David Harbach. As former U.S. Justice Department top attorney, Herbach was key to the successful prosecution for corruption of Virginia Governor Bob McDonnell, who was recently sentenced to two years in prison Herbach is now a top FBI advisor, adds “the FBI’s public corruption section has more undercover operations than any other part of the FBI. This area of prosecuting public corruption is at the core of what we are as a country.”

Herbach was joined at the seminar by noted in the seminar discussion by Cyrus Vance, Jr., the New York County District Attorney, Patrick Fitzgerald, former U.S. Attorney for the Northern District of Illinois, and Michael Garcia, former U.S. Attorney for the Southern District of New York. Each of them stressed that they see investigating and prosecuting corruption by public officials as an absolute top priority, central to securing the United States as a democracy.

It is precisely this core conviction that has driven each of them, as well as Preet Bharara to be unflinching in going after crooked politicians, irrespective of how powerful they are. Moreover, each of them underscore that they are non-partisan and driven solely by the goal of ensuring justice, irrespective of whether or not charges just happen to be made public on the eve of an election, or at another time that may be especially sensitive in terms of the political calendar – for example, New York state governor Andrew Cuomo’s hopes of finalizing a complex state budget deal with the Assembly will probably be heavily delayed because of the charges now brought against Sheldon Silver.

Fitzgerald noted that there is a long tradition both of corruption, and prosecuting corrupt politicians, in Chicago. He said this helped greatly in bringing the very high-profile cases that he pursued, which led to the jailing of former Illinois state Governor George Ryan and then the even higher profile prosecution on 18 counts of corruption of Ryan’s successor, Governor Rod Blagojevich who is now serving a 14 year jail sentence. Fitzgerald believes that judges are increasingly willing today to impose serious sentences for corruption crimes and that this is a very positive development.

 

TRUST

Michael Garcia recalled that when he was appointed in 2001 to the New York post now held by Bharara he reviewed pending corruption investigations and encouraged his staff to be still more vigilant. He said that at the same time it was important for him to speak publicly about corruption and to stress the priority that his office attached to honesty in government. He said, “It is often very difficult to quantify the impact of corruption on society, but it is undermining the system and trust in the system.”

Garcia noted that where top public officials are concerned then for him there is no option to settle the case, but to ensure that actions at a minimum force the official from office. This happened on Garcia’s watch, for example, when then New York Governor Eliot Spitzer felt bound to resign as investigations highlighted his meetings with prostitutes.

Cyrus Vance Jr. (photo) noted that Federal law provides prosecutors with greater scope to bring corruption cases than does New York State law. This probably explains why the Silver cases have been brought by Bhara’s office. Vance explained that immunity laws for witnesses are too sweeping in New York, so this can enable individuals who are corrupt to evade being prosecuted. He added that in New York state a person cannot be prosecuted solely on the basis of what accomplice say, while Federal law does not have this kind of provision.