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The Supreme Court expects a lot from state prosecutors

The Supreme Court expects a lot from state prosecutors
© Bonnie Cash

The Supreme Court’s ruling in Trump v. Vance gives state prosecutors the authority to investigate the personal dealings of even the most powerful man in the world. The Vance decision is thus a clear win for the state corruption prosecutors I train, whose cases are immune from presidential pardons or commutations. By putting state subpoenas on similar footing as federal subpoenas, the court reaffirms that state prosecutors play an important role in upholding the rule of law. 

But as much as I hope this decision encourages these prosecutors, they face structural challenges when investigating corruption, and some may conclude that using the power the Supreme Court has given them comes at a price they cannot pay. 

This has ramifications far beyond whether and when the Manhattan district attorney’s office ever actually lays hands on the president’s tax returns.

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Two recent Supreme Court cases largely placed responsibility of state and local corruption enforcement in the hands of state prosecutors. Those cases — 2016’s McDonnell v. United States and the “Bridgegate” decision issued earlier this year — curtailed the powers of federal prosecutors to address state-level corruption. When it reversed the Bridgegate case — Kelly v. United States — a unanimous Supreme Court reassured us that state laws criminalized conduct it called “corrupt” but concluded it did not violate federal law. 

While the Supreme Court has been clipping the wings of federal prosecutors, at least some state courts have interpreted state corruption statutes more generously.

State prosecutors are thus increasingly the only line of defense against certain forms of corruption. Many of those prosecutors do important work, despite structural challenges that can include limited jurisdiction, a lack of resources and cumbersome procedures for complex cases that cross state lines. 

In addition to these hurdles, state prosecutors can be vulnerable to political retribution. When the Alabama Attorney General’s Office charged a powerful, same-party legislator several years ago, the legislature threatened to zero out the budget for the entire office. In some states, individual prosecutors can be fired for any reason — even for upholding their ethical obligations.  

These are among the factors that some academics cite as reasons for federal prosecutors to take the lead in corruption cases. Federal prosecutors have historically been less likely to face career-ending consequences if they brought corruption cases — with some notable exceptions. But this presumption may be entitled to weight less now, in the face of irregularities including the spectacle surrounding last month’s removal of Southern District U.S. Attorney Geoffrey Berman, who oversaw cases that President TrumpDonald John TrumpTrump rages against '60 Minutes' for interview with Krebs Cornyn spox: Neera Tanden has 'no chance' of being confirmed as Biden's OMB pick Pa. lawmaker was informed of positive coronavirus test while meeting with Trump: report MORE disfavored.  

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To be clear — and as Berman himself noted — only the U.S. attorney general and the president truly know what animated their decisions. At best, however, the optics surrounding the removal of the head of the “Sovereign District” risk chilling state enforcers who do not have Berman’s power or visibility.

Berman’s firing played out publicly in close to real time and he recently testified in a closed hearing in the House Judiciary Committee. In the end, his career will undoubtedly be fine. But state prosecutors fired after prosecuting the “wrong” people are more likely to be dismissed quietly, without public scrutiny into the motives of those who fire them, and they are unlikely to have similar career prospects.  

In some states, the risk of retaliation can dissuade good prosecutors from joining corruption units. Prosecutors may be unwilling to risk their livelihood by serving the type of subpoena the Supreme Court now permits, or charging the corruption cases the court has concluded only they have the power to bring. 

The best state corruption prosecutors uphold the finest traditions of the profession, and it is an honor to support those who take up the mantle that the Supreme Court expects them to carry. It is undoubtedly a good thing that the Vance case gives these public servants tools to carry out the mission that the McDonnell and Kelly decisions left them. But the ability to serve a subpoena does not protect state prosecutors from retaliation if they exercise that power. If these prosecutors conclude they will have to risk their jobs to enforce the law, it is not clear who will be left to hold corrupt officials accountable. 

While we cannot address all of the challenges facing state prosecutors, my team and I are working to provide them with guidance as they investigate and charge corruption cases. The U.S. Congress could help by devoting additional funding to training state prosecutors. But what state prosecutors really need is largely up to state lawmakers — who may well have every incentive not to empower them: the resources and jurisdiction to investigate and prosecute corrupt officials, and protection from retaliation for doing the work the Supreme Court has placed in their hands. 

Amie Ely is the director of the NAGTRI Center for Ethics & Public Integrity at the National Association of Attorneys General and co-editor of the forthcoming Anticorruption Manual. For nearly seven years, she was an assistant U.S. attorney at the Southern District of New York, where she served under both Republican and Democratic administrations. This piece is written in her personal capacity and does not reflect the views of her current employer.