Now nine months into his second term, President Donald Trump may be setting a new norm in law enforcement. Under his watch, prosecutors in the U.S. Justice Department have indicted three people whom Mr. Trump believes have done him wrong: former FBI Director James Comey, current New York Attorney General Letitia James, and, on Thursday, his former national security adviser, John Bolton.
The courts may yet declare all three to be innocent of charges against them. Yet the possibility of prosecutorial misconduct, such as for vindictiveness, has supercharged efforts to reset the norms of integrity – that is, pursuing justice over “winning” – that most prosecutors have honored for decades.
For now, much of that norm-resetting is at the state level, where millions of felonies and misdemeanors are handled each year by more than 2,300 prosecutor’s offices. And it is in the states where much of the problem lies. In about a third of cases in which someone is exonerated, the reason is prosecutorial misconduct; yet only 4% of prosecutors who participated in a wrongful conviction have been disciplined, according to the National Registry of Exonerations.
Some legal experts want the American Bar Association to toughen its Model Rules of Professional Conduct, specifically Rule 3.8 that establishes obligations and discipline for prosecutors, the gatekeepers of the legal system. Many states have recently tweaked ethics codes for prosecutors, as well as for other government workers. This year, for example, New York State updated its ethics guidebook for prosecutors, titled “The Right Thing.”
“Defense counsel protect their clients’ interests and legal rights. Judges protect the parties’ rights and the public’s interest in the proper resolution of pending cases,” the handbook states. “But it’s not their job to find the truth, decide who should be charged, or hold the perpetrator accountable. Only prosecutors are given the freedom – and with it the ethical duty – to promote all these vital components of ‘the right thing.’”
Two states, Georgia and New York, have recently set up special bodies to oversee the conduct of prosecutors. The two commissions are very different in the scope of their powers and their political purposes. While they represent a new approach to the problem of “rogue” prosecutors, both are not seen as bipartisan enough. And rather than assist prosecutors in acting better, they are largely investigative or regulatory.
“Ethical principles are the essence of criminal prosecution, not a burden upon it,” the New York handbook states. Helping prosecutors to act along those principles, either in the Trump Justice Department or in the local courthouse, is now on the docket in the United States.
