Who is guarding the guardians?

Who is guarding the guardians?
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Our system of checks and balances is working tolerably well. The courts are reviewing executive orders, striking down some, upholding others. Congress may soon have one chamber controlled by Democrats, empowering it to conduct investigations and hearings regarding the president. The media is doing its job, despite being attacked by the president. So are the academy, religious bodies, the business world and other mechanisms that are part of our informal checks and balances.

It is not perfect but no system of governance is ever perfect, as Winston Churchill reminded us when he said, “Democracy is the worst form of government except for all the others that have been tried over time.” The same can be said about our imperfect system of checks and balances.


The only institution of government that is not currently being checked is the prosecutorial branch. Although President TrumpDonald John TrumpTrump: I hope voters pay attention to Dem tactics amid Kavanaugh fight South Korea leader: North Korea agrees to take steps toward denuclearization Graham calls handling of Kavanaugh allegations 'a drive-by shooting' MORE toyed with the idea of firing Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE, he will not do so. Nor will he fire prosecutors in the Southern District of New York who are investigating his associates. Indeed, Congress is considering legislation that would insulate prosecutors, especially independent counsels, even further.

It is important for prosecutors to be independent of politics, but prosecutors are not above the law. Prosecutorial abuse has long been rampant throughout the country, as civil libertarians have been pointing out from time immemorial. The Supreme Court has immunized prosecutors from legal liability for many of their excesses because prosecutors are guardians of justice.

Yet, as the Romans asked, “Who will guard the guardians?”

In theory, the attorney general of the United States is supposed to check against prosecutorial abuses by federal prosecutors. But Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsSessions: DOJ concerned about suppression of free speech on college campuses Faith communities are mobilizing against Trump’s family separation policy Former FBI Deputy Director Andrew McCabe lands book deal MORE has recused himself from this entire investigation and his deputy, Rod RosensteinRod Jay RosensteinDem lawmakers slam Trump’s declassification of Russia documents as ‘brazen abuse of power’ Time for sunshine on Trump-Russia investigation The Hill's Morning Report — Sponsored by United Against Nuclear Iran — Kavanaugh confirmation in sudden turmoil MORE, is conflicted by his status as a key witness in many obstruction of justice investigations of the president. State prosecutors are subject to even fewer checks, and many of them are elected and play to their constituencies.

The courts, too, are supposed to serve as a check against prosecutorial abuses. Yet, when District Judge T.S. Ellis, who presided over the first trial of former Trump campaign chairman Paul ManafortPaul John ManafortEric Holder: Trump releasing docs on Russia probe is 'dangerous abuse of power' Time for sunshine on Trump-Russia investigation Legal expert says Manafort deal could help Trump in short term MORE, called out prosecutors for using Manafort as a means to getting their real target, President Trump, Ellis was roundly criticized, including by some civil libertarians. Despite his criticisms of the special counsel, Ellis lacked the power to do much about what he regarded as abuses.

The dangerous reality is that, today, many prosecutors are above the law, even when they engage in prosecutorial misconduct. There is no effective check on their overzealousness. Many of these abuses occur behind the closed doors of a prosecutor’s office, in the secrecy of grand jury rooms and in the corridors where secret deals are made with informers. Prosecutorial decisions and actions are among the least transparent of any government officials.

Today, the special counsel, the Southern District, the New York attorney general, the Manhattan district attorney and other prosecutors are targeting President Trump and his associates. Tomorrow they could be targeting Democrats. The day after tomorrow, they could be coming after you. There should be an effective check on prosecutors. It should be a check that does not interfere with their political independence but that makes sure they are not targeting Americans based on politics, or employing prosecutorial tactics that endanger civil liberties.

One check that seems to be working is the inspector general of the Justice Department, whose report on the conduct of former FBI Director James ComeyJames Brien ComeyEXCLUSIVE: Trump says exposing ‘corrupt’ FBI probe could be ‘crowning achievement’ of presidency Russia docs order sets Trump on collision with intel community Dem lawmaker jabs Trump call for transparency by asking for his tax returns MORE during the campaign was widely seen as fair and objective. But the inspector general’s jurisdiction is narrowly defined and his resources are limited. Congress should create a permanent office, outside of politics, staffed by independent experts in legal ethics, prosecutorial tactics and constitutional law to oversee federal prosecutors around the country and to assure that they are not overstepping their bounds.

Among those serving in such an office might be distinguished former prosecutors such as Robert Morgenthau, professors of legal ethics such as Stephen Gillers, and renowned constitutional lawyers such as Floyd Abrams. Creation of such an office should receive bipartisan support, since prosecutorial misconduct has victimized Democrats and Republicans alike. The beneficiaries would be ordinary Americans who today have no recourse against prosecutorial abuses that are often committed below the radar by overzealous prosecutors anxious to advance their careers.

Honest prosecutors are guardians of our liberty but they, themselves, must be subject to nonpolitical oversight and accountability. Without a process for guarding our guardians, our system of checks and balances will remain incomplete.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.