A district attorney’s real duty
The recent revelation in the media that the Manhattan District Attorney’s office investigated Ivanka Trump and Donald Trump Jr. for fraud in the sale of condominium/hotel hybrids at Trump SoHo, but declined to file charges, provides an excellent opportunity for the public to step back and remember what exactly the role of a prosecutor is.
In the Trump SoHo story and in its wake, Manhattan DA Cyrus Vance has been criticized for a number of perceived sins. He was said to have accepted a large campaign contribution from a lawyer for the Trump children as a reward for having declined to proceed with the case. He was accused of turning a blind eye to obvious fraud by rich white people.
He also was cited for “overruling” “his own prosecutors.”
And to prove that any random set of stars can become a constellation, news outlets have since drawn a connection between the Trump SoHo case and the fact that Hollywood producer Harvey Weinstein was not charged with a misdemeanor in 2015 for groping a model, also because of a lawyer’s campaign contribution.
Aren’t these critiques right? Shouldn’t prosecutors be held to the highest ethical standards? Of course they should, but we need to understand what those standards, mostly developed over more than a century, are. Outrage is easy; principles are hard.
The first principle is that district attorneys are not like regular lawyers. Instead, DAs have a special obligation to see that justice is done — which means that a DA may be successful in handling a matter even if he never files charges, or if he loses at trial.
To paraphrase a former Justice Department official: The government wins its case when justice is done. Sometimes, this means not filing charges; it’s not only OK to do so, it’s expected.
Additionally, it has long been the tradition of state and federal prosecutors in New York not to take a case to trial unless they are personally convinced of the defendant’s guilt — on all of the elements of the crime — beyond a reasonable doubt.
This is not a legal requirement; it is the proverbial higher standard. And “all elements” means just that. It may be clear, for example, that a defendant caused the victim’s death, but if there is a reasonable doubt that the defendant did not do so on purpose, then the prosecutor will decline an intentional murder charge.
It should also go without saying that the DA is required to make decisions based on the facts and the law, and never on the basis of political considerations or public opinion.
This is key: Because he is required not to put his finger up to the wind, the DA is practically guaranteed to upset one side or the other when making decisions in close cases. That’s his job, and no amount of musing that a particular decision might, say, have paved the way for a Trump presidency changes that.
Unlike federal prosecutors, New York’s district attorneys are elected officials who must campaign for office and are allowed to raise money under state law. This may strike many as odd in light of the principles above, but that is the system given to us by the framers of the state’s Constitution.
Notably, although DAs should not (and most do not) accept contributions from people or companies who are themselves involved in cases, no rule currently stops defense lawyers from giving to these campaigns, even when they have matters before the office. This practice is ripe for re-examination, and in today’s Daily News, DA Vance has announced exactly that. But up until now, this has been a well-accepted practice that long predated DA Vance’s tenure and is widely followed today. Bill Bramhall is on vacation.
At a minimum, if DAs are to continue to raise money, they must ensure a separation between the campaign apparatus and the prosecutor’s office, so that one does not affect the other. And a designated assistant DA (a role I filled when I worked in Manhattan) should ensure that defendants and subjects of investigations — and, if the rules change, lawyers — do not contribute.
Finally, we should dispense with the notion that a district attorney “overrules” “his own prosecutors.” Legally, it is the DA, and only the DA, charged with making key decisions. While he or she is certainly allowed to delegate in particular matters, all calls are the ultimate responsibility of the elected prosecutor.
The press and the public have a fundamental right to disagree with the decisions of any elected official. It is crucial, though, to understand what prosecutors are all about before criticizing actions that are perfectly consistent with their roles and responsibilities.