Hannah Blog

January 27, 2014

A Nest of Prosecutors

Filed under: another perspective,Down the drain — hannah @ 1:32 am

Following up on their exclusive coverage of the Mayor of Hoboken, New Jersey, a week ago, MSNBC’s UP with Steve Kornacki did a profile of Kim Guadagno, the Lt. Governor of the State, whom Mayor Zimmer accused of having tried to tie the distribution of hurricane Sandy reconstruction funding to the approval of a private redevelopment project on the banks of the Hudson. Since all of the actors are being queried by the FBI and have been asked not to comment further to the press, Kornacki logically focused on Guadagno’s background as a federal prosecutor in New York, a career track she shares with Chris Christie, Jeffrey Scott Chiesa, Rudy Giuliani, David Samson and who knows how many others in the Governor’s camp. And, as one of the guests on the program pointed out, the prosecutorial roots are routinely trotted out to dispell any hint that lawless inclinations might be in play.

History suggests that New Jersey is the very model of how self-justifying and self-serving individuals are perhaps prompted by the autonomy and absolute immunity they enjoy as prosecutors to perceive higher elected positions as an opportunity to practice (benign) tyranny. Which leads me to suggest that the prosecutorial experience might better be held against applicants for executive and/or legislative office, rather than our considering it a positive.

But, before I include a comment to that effect, which I posted yesterday in another context on Dailykos, I want to note briefly what was left out of the Kornacki profile of the first ever Lt. Governor of the state of New Jersey. Ms. Guadagno is the first because the position was only recently created to correct an omission which had led to the state having five temporary governors in eight days when the elected Governor had to leave office early. As the Lt. Governor, Guadagno is in the cabinet and takes direction from Christie, as was pointed out, but she also holds the office of Secretary of State and, in effect, supervises the Commissioner of Community Affairs. She’s not just dispatched to cut ribbons, the ostensible reason for her visit to a Hoboken supermarket, whose grand opening had actually taken place several months before.
Corporate shill
What makes the omission of Guadagno’s other official position from the profile interesting to me is that when I mentioned it in my post about Constable, the Commissioner of Community Affairs, on Dailykos, two commenters showed up to “correct” me by asserting she’s not the Secretary of State. Since I normally don’t get many comments on my posts, two people showing up to refute a truth and then having that truth left out of the media profile seems peculiar and worth noting.

But, to get back to the prosecutors, I want to add what I wrote on Dailykos in the context of the failure to prosecute the reckless homicide of a New York office worker by a Wall Street big-wig.

The problem is systemic. Let me explain.
Before the Revolution and the adoption of the Constitution, there was an operational principle known as “sovereign immunity.” Because the law came from the sovereign, the sovereign was not subject to it. The U.S. Constitution tried to change that by assuming that the people rule and are the source of law. However, as we all know, in effect only a small percentage of the people even had a vote in the beginning. So, the attitude of the new “rulers” who were chosen by ballot, rather than heredity went largely unchallenged.
The passage of the Alien Tort Claims Act in 1789, specifically gave foreigners the right to sue public officials whom they perceived not to have carried out their duties objectively.
No such legislation was passed on behalf of residents and citizens until the passage of the Federal Tort Claims Act in 1947, in response to official malfeasance in awarding military contracts during World War II.
In other words, when Richard Nixon first assumed a public office it was still the tradition that public officials are immune from being called to account for negligent or self-serving behavior and that could account for his opinion that “when the President does it, it’s not a crime.” The Supreme Court set him straight and, eventually a lot of other public officials got the word that ethical standards are in force. Which was one of the spurs to privatization. If they can’t benefit personally from their decision-making, many public officials opine, why bother dealing with the nitty gritty.
Nowadays, while there is still a hankering for the absolute power “sovereign immunity” represents and law enforcement enjoys and clings with great tenacity to “qualified immunity” (if you follow the manual, you’re OK), there is only one group of public officials whose immunity is still absolute because Congress has not said different and because the SCOTUS has not ruled on this exception, which rests on the assumption that the functions of prosecutors are merely ministerial. The SCOTUS has come close to opining on this jurisprudential hole, but cases keep being settled before they get to rule.
The assumption that prosecutors merely transmit information from the executive to the judicial branch is false. The presumption that they have no self-interest and that political ambition is not an issue is also false. We have evidence that lots of innocent people get railroaded because prosecutors want to make a name for themselves. (Chris Christie, Rudy Giuliani, Kelly Ayotte el alia come to mind).
But, I think what’s worse is that this autonomy and absolute immunity associated with the office sets a pattern of behavior which becomes really detrimental when these people move on into decision-making venues. Given the slightest opportunity, they behave like tyrants and are surprised when, like Bob McDonnell, they are called out.

If Congress weren’t filled with grand-standers, they could pay attention to legal deficits instead of threatening our human rights.

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