Clinton Case in Context: When Politics and Prosecutions Overlap
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Version 0 of 1. The F.B.I. recommendation on Tuesday not to file charges against Hillary Clinton for what the director James Comey called her “extremely careless” email practices has set off a debate over whether there was any partisan influence in the case. The issue came to the fore last week when news broke that former President Bill Clinton had boarded Attorney General Loretta Lynch’s plane. Though both sides insisted they had not discussed the case against Mrs. Clinton, the resulting furor prompted Ms. Lynch to vow to accept the recommendation of career prosecutors and the F.B.I. on whether to file charges. In his announcement of the recommendation, which is likely to be endorsed by prosecutors at the Department of Justice, Mr. Comey said that the investigation had not been subject to outside influence. Mr. Comey’s claim carries credibility given his status as a Republican who served in the George W. Bush administration. The case was also extraordinary in its level of importance and scrutiny — which may have created pressure to avoid any appearance of affecting the November election — and may not fit previous patterns. However, the historical record suggests that politically sensitive cases are often not immune from politics, especially in the timing of when they are resolved. The economist M. Marit Rehavi and I examined all federal public corruption cases filed by United States attorneys against defendants who were publicly associated with one of the two major parties from 1993 to 2008 — precisely the types of cases where prosecutors might face partisan pressure. Contrary to previous research, we found little evidence that United States attorneys or the career prosecutors whom they supervise target opposition party defendants with weaker cases — no measurable difference was observed in conviction rates between parties. In fact, prosecutors seem to treat members of the president’s party more harshly in resolving cases, perhaps to avoid the appearance of favoritism in plea deals that typically involve recommendations for sentence reductions. However, we did find significant partisan differences in the timing of cases around elections. Compared with co-partisans, opposition defendants were relatively more likely to face corruption charges before a state or federal general election rather than after. This dynamic appears to be driven by charges being filed more quickly against opposition party members before elections. Why do we observe these differences in the timing of cases? We argue that many prosecutors have ambitions to hold higher office and are thus sensitive to the preferences of political patrons, whose support is essential to obtaining positions such as judgeships (for United States attorneys) or United States attorney (for career prosecutors). (As F.B.I. director, Mr. Comey is in a different position; he was appointed by Barack Obama and is serving a 10-year term.) These patrons may welcome charges against opposition party members or fear that their allies will be targeted during the sensitive pre-election period. For instance, David Iglesias, the former United States attorney for New Mexico, tells of receiving pressure from Republican members of Congress to file charges against Democrats before the 2006 elections. Indeed, we found that political appointments were more common among prosecutors who brought relatively more pre-election cases against opposition defendants. Career prosecutors who do not have political ambitions may simply want to maintain favor with the supervising United States attorney to obtain favorable recommendations for future positions. In the case of the email investigation, the outcome might not have been different if Mrs. Clinton had been a Republican, but it’s possible that her voluntary interview with the F.B.I. would not have been held over a holiday weekend (when the media exposure was lessened) or that officials would not have moved as quickly to resolve the case before the Democratic convention. By contrast, Lawrence Walsh, the independent counsel in the Iran-contra scandal, which began during the Reagan administration, filed a new indictment against former Defense Secretary Caspar Weinberger just days before Reagan’s vice president, George H.W. Bush, lost his bid for re-election in 1992. The timing of the case filing was seen as damaging to Mr. Bush at the time. There is no easy answer to how to handle politically sensitive cases — the independent counsel law was widely considered to be a failure and allowed to expire in 1999 — but the data suggest that it is hard to keep politics out of prosecutors’ decisions. |