This is not a new change, but one that has been creeping on the United States for almost a generation. It has been the hallmark of recent legislation that has increasingly stripped private shareholders of rights to protect their own interests. See Larry Catá Backer, Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring after Sarbanes-Oxley. 2004 Michigan State Law Review (2004). But the federal authorities have also stripped states of similar authority. Consider only one recent engagement with this issue: Aaron Tidman Securities Law Enforcement In The Twenty-First Century: Why States Are Better Equipped Than The Securities And Exchange Commission To Enforce Securities Law, 57(2) Syracuse Law Review 379-405 (2008).
Nor is this also not a change that is politically motivated, in the sense that it is a Democratic or Republican Party agenda. Both parties have gorged at the well of litigation power, and bpth have muscled both individuals and states out of their own power to defend their own specific interests in court. With respect to any number of rights and obligations, it seems, that the federal government is prepared to constriuct a closed loop--originating the right thrpugh statute, enforcing the right in couyrt, and determining the place and manner in which those rights are defended in such courts. This closed loop self referencing system sucks power and discretion up from the individual whose rights are the subvject of intra-governmental action (on their collective but specific behalf) and away from both the collective of individuals whose interests have been usurped and the subordinate political power, whose specific authoerity is also aggregated in the service of the larger collective (but again in lieu of and as proxy for the individuals whose interests are really at stake).
Lastly, it is not a change merely targeting reallocations of enforcement power from individuals and states ot the federal governmental apparatus. Rather, the federal prosecutorial apparatus has increasingly taken it upon itself to monitor and prosecute elected governmental officials at the local, state and federal level in the name of anti-corruption campaigns. Not that there is anything wrong with the prosecution of corrupt officials. But rather that the line between prosecution of corruption in a context in which a healthy polity engages in the policing of such conduct at all levels and dfrom all stakeholders (citizens, officials, local and federal officials) and one in which such prosecution comes to represent assertions of authority from one sector of one branch of one government actor over all others and over the prerogatives of the electorate it ought to serve is both a fine one and a perilous one for the long term health of the Republic. When such litigation substitites for politics, it robs the electorate of its sovereign authority over its officials and it is transformed into an instrument for rule--with potentially far reaching effects.
A recent episode in the evolution of the politics-by-litigation-at-the-hands-of-public-prosecutors -and-their-federal-policie-officals-as-agents ought to remind us that litigation, especially in the hands of those who seek control of the political process by this means can as effectively subvert as protect the integrity of the Republic. This result is most acutely felt when the instruments of this litigation are those with substantial control over enforcement of the will of the state apparatus. Sadly, recent events in the United States suggests that the tilt is not always towards protection, and might, indeed, be tilting toward subversion.
I refer, of course, to the recent prosecution, conviction and noew apparaent rehabilitation of former United States Senator Ted Stevens.
Faced with embarrassing revelations about withheld evidence, the Justice Department on Wednesday moved to reverse the conviction of former Alaska Sen. Ted Stevens, who lost his bid for re-election just days after a jury found that he had lied about gifts and home renovations.
Justice Department lawyers asked a judge to dismiss the indictment against Stevens and toss out his conviction -- effectively killing their own courtroom victory with a shocking admission of misbehavior by prosecutors.
The Stevens case, the government's highest-profile attack on congressional corruption in recent years, was plagued by problems that continued to pile up even after a jury found him guilty. The last straw, apparently, was the failure of prosecutors to turn over notes of a crucial interview in which a witness contradicted a statement he made later under oath at trial. Devlin Barrett and Nedra Pickler, Ted Stevens Conviction to be Voided, April 1, 2009, reproduced in te Huffington Post April 5, 2009.
Many among the elite either dismissed this episode or belittled its significance. Consider CNN Political Ticker: All politics, all the time Blog Archive, CNN Political Ticker - Apr 3, 2009 and Chris Matthews: Poor Little Old Ted Stevens | Video Cafe -April 2, 2009. Others were more thoughtful, focusing specifically on the power of prosecutors. "What’s going on here? Equally important, beyond the Stevens case, what can be done? As the examples above show, prosecutorial misconduct takes many forms, from failing to disclose critical evidence to disclosing information illegally to the press to overreaching in the exercise of the prosecutor’s discretion. Underlying all of them is a frightening misconception of the role of the prosecutor." John Farmer, Prosecutors Gone Wild, OP-Ed Contributor, The New York Times, April 2, 2009. Yet even these failed to make the connection between prosecutorial power and the integrity of the democratic system within which they operate.
For those who might dismiss this as yet another example of a rambunctious prosecuotr and his go-go federal agents with a lively sense of his own power, and a refined sense of his anticipated upward career track within the federal bureaucracy, a reminder of a similar set of circumstances from another republic in another era might be useful to consider. That republic, though long dead, played an enormous role and role model for our framers in the construction of the American Republic and comparisons to it ought not to be dismissed too easily. I refer, of course, to the Roman Republic, and specifically to an interesting ways in which litigation as politics converged in dangerous ways in the last years of the Republic. See, e.g., A.H.M. Jones, The Criminal Courts of the Roman Republic and Principate (1972); Erich S. Gruen, Roman Politics and the Criminal Courts, 149-78 B.C. (1968).
Waging of political warfare in the criminal courts had a long history. The questiones perpetuae were born in politics. From their inception the interests of justice were tempered with a generous mixture of politics. Two generations prior to the Ciceronian age established that pattern. It persevered to the end of the Republic. . . . Electoral defeat was only temporary embarassment; legislative failñure could subsequently be reveresed; but conviction on a criminal charge might entail permanent exclusion from the public scene. Erich S. Gruen, The Last Generation of the Roman Republic 260 (Berkeley, CA: University of California Press, 1974).Not that the form changed, or that the principles under which this conflation operated in the late Republic, but its application increasingly distorted and upped the stakes in political battles until rupture in the form of the Caesarian (Julius Caesar) dictatorship of 49 B.C. And though the political element of a certain element of criminal prosecution over the course of the three decades between the Sullan (Lucius Cornelius Sulla Felix) and Caesarian dictatorships evidence "the remarkable conventionality of Roman behavior" (Gruen, supra., at 357), it also suggests that way that such use, when amplified beyond a certain point, could contribute to the weakening of a fidelity to the institutions of the Republic. This was a contemporary understanding. I am especially reminded of another great corruption scandal, centered on irregularities, bribes and touching on the misuse of office.
Julius Caesar, we are told by Seutonius, was embroiled in a great political battle with his rival Pompey Magnus. The political contest was played out, in part, on the field of law, with the threat of litigation a potent weapon effectively used as Julius Caesar sat with his army at the border of his province on the banks of the River Rubicon.
Another view is that he dreaded to account for the irregularities of his first counselship, during which he had disregarded auspices and vetoes, and defied the Constitution; for Marcus Cato had often sworn to impeach him as soon as the legions were disbanded. Moreover, people said at the time, frankly enough, that should Caesar return from Gaula s a private citizen he would be tried in a court ringed around with armed men, as Titus Annius Milo had lately been at Pompey's orders. That sounds plausible enough. Gaius Seutonius Tranquillus, The Twelve Caesars 22-23 (Robert Graves, trans., Harmondsworth, Middlesex, Eng.: 1957) (c. 130 A.D.).And thus the Republic, already altered with a hyper litigation culture in the service of political ends, began the last phase of its inward transition to something else. These events and transitions ought to serve as a cautionary tale. The temptation to first usurp and then use an investigatory power and to bring criminal charges in a way that significantly impacts politics also distorts the character of the Republic in ways that can be quite destabilizing in the long run. However benign any one prosecution, the aggregation of prosecutorial oversight--through criminal investigations and trials--of political figures adds an element of federal oversight to politics in ways that cannot be ignored for their anti-democratic potential conseqeunces.
Yet, like the last time around, some of the influential molders of public opinion (and elite opinion as well it seems) believe they are protecting the state against the discretionary authority of elected officials to make silly or unwise determinations of tax spending in the form of earmarks or specially targeted spending. While they look to find a structural limitation to the power of elected officials over the budget, they are perhaps erecting structural expansions of the power of the prosecutor over the electorate. "While reaction in the Senate was muted, Sen. Lisa Murkowski, R-Alaska, called the whole episode grossly unfair. 'I am deeply disturbed that the government can ruin a man's career and then say, 'Never mind.' There is nothing that will ever compensate for the loss of his reputation or leadership to the state of Alaska,' Murkowski said." Devlin Barrett and Nedra Pickler, Ted Stevens, supra. But it is far more than that. Prosecutors who may now monitor the activities of federal and state elected officials now serve both to chill their conduct, strip both states and citizens of the authority to determine how to discipline their representatives, but also, as agents of the executive branch, serve as the reminder that not everything appears to be co-equal among our three co-equal branches. The issue of the allocation of the authority to monitor and discipline the elected agents of the Republic is as vital to the health of that Republic as the substantive issues these elected officials determine. The move to shifting accountability and enforcement to an instrumentality of the executive speaks loudly to a shift in the effective division of power both between the federal executive (and his agents--prosecutors and police) and the legislative and judicial branches, and also between the federal governmental apparatus and those of the states.
In this context, the vindication of Senator Ted Stevens, just after the fact--that is the fact of an election that was lost during the course of the investigation, and trial--with apologies and a small amount of contrition, amounts to a personal victory and an institutional loss of much larger proportion. See Ted Stevens Conviction Overturned, BBC News Online, April 7, 2009 (quotung the former Senator as suggesting,"I always knew that there would be a day when the cloud that surrounded me would be removed," Mr Stevens said in a statement."That day has finally come. It is unfortunate that an election was affected by proceedings now recognised as unfair.").
Just as federalism was reshaped in the 20th century, reducing states to vestigial sovereigns, so the 21st century may see the reduction of the power of both court and legislature to the princely estate of the executive branch. We will move from the age of Julius Caesar to that of Augustus, from that of Trotsky to that of Stalin, or perhaps better understood within the discursive tropes of American elites, from the age of the founders to that of the bureaucrats and their police agents. In that world, legislators must learn to behave better for the police and prosecutorial agents of the executive as excluive proxy for the sovereign, in whose name, more and more, he appropriates an exclusive right to act.