All-Powerful Prosecutors

By William D. Delahunt

Wednesday, March 3, 1999; Washington Post, Op-Ed, Page A23

In a Jan. 25 editorial on the Pollard espionage case, The Post argued that even a "loathsome and guilty spy" deserves better than to have his fate determined by secret evidence to which he cannot respond. Yet a second editorial that day endorsed the view that federal prosecutors should be exempt from state ethics rules that ensure due process to other defendants who are merely suspected of criminal acts ["Repealing a Bad Law"].

At issue is the Citizens Protection Act, enacted last year over the objections of the Justice Department, which now seeks to have the measure repealed before it takes effect. This legislation, which The Post characterizes as a "dangerous attack on federal prosecutors," requires only that attorneys for the government abide by the same ethical standards that
govern all other members of the bar in the states in which they practice. These standards include a rule common to every jurisdiction that forbids attorneys to communicate with a person concerning a matter in which they know that person is represented by counsel.

Most people are surprised to learn that government attorneys are not already subject to such requirements. It certainly surprised Rep. Joseph McDade (R-Pa.), who co-authored the Citizens Protection Act with Rep. John Murtha (D-Pa.) after learning firsthand how it feels to be the target of a prosecutorial witchhunt.

In 1988 McDade was investigated -- and eventually indicted -- for allegedly accepting gifts from defense contractors in exchange for his help in winning lucrative bids. Because of the indictment, he was barred by House rules from becoming chairman of the Appropriations Committee. According to McDade, the prosecutors intimidated his friends, family and staff and sought to damage his reputation through press leaks and other means. In 1996, after eight years and hundreds of thousands of dollars in legal fees, this decent, honorable man was acquitted on all counts. He retired this year, after 36 years in Congress.

The McDade case is not an isolated incident. It is part of a disturbing pattern of abuses that have tilted the playing field toward prosecutors and against the rights of defendants -- few of whom have the personal and political resources on which Joe McDade could rely.

We all support the legitimate goals of law enforcement. But those ends do not justify the use of state power to trample the rights of ordinary citizens -- whether the defendant is a corporate CEO or small-business owner, a huge HMO or community hospital, a U.S. president or an ordinary citizen.

Recent experience with the Independent Counsel Act has provided quite an education in the dangers of overzealous prosecution -- from the four-year, $40 million Starr investigation to the $7 million inquiry into whether former HUD secretary Henry Cisneros lied about payments to a former mistress, to the $17 million investigation of corruption charges against
former agriculture secretary Mike Espy.

Our system of justice concentrates enormous power in the hands of the prosecutor. Abused and unchecked, that power can destroy innocent lives and reputations, threatening the rule of law and shaking the public confidence on which our civic institutions depend. Most of the prosecutors I have known in my career have wielded their authority with exemplary
restraint. But those who fail to do so are as dangerous to the health of our society as the criminals they pursue.

That is why the Citizens Protection Act received overwhelming bipartisan support in the House of Representatives as well as the endorsement of such respected organizations as the Conference of Chief Justices and the American Bar Association.

And that's why it is important to resist misguided efforts, such as those underway in the Senate, to repeal the act. If the people are to have confidence in the administration of justice, they must know that federal prosecutors will be held to the same standards of conduct that apply to other attorneys, and that complaints will be dealt with in a thorough, fair and expeditious manner. I intend to work with Rep. Murtha not only to defend the existing legislation but to pass such additional measures as may be necessary to ensure that Justice Department ethics investigations are conducted in accordance with these principles.

The writer, a Democratic representative from Massachusetts, is a member of the House Judiciary Committee and a former district attorney.

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